Executive Summary

In Alabama, people in the visiting room recognize the
armband worn by John S. and ask him if he has HIV. In South Carolina, Ronald B.
was sentenced to 90 days in jail, but because he is HIV-positive he went to the
maximum security prison that houses death row prisoners. In Mississippi, guards
tell prisoners in the segregated HIV unit to “get your sick asses out of
the way” when they pass them in the hall. Many prisoners with HIV will
spend more time in prison because they are not eligible for programs that
promote early release. These are some of the harsh consequences of HIV policies
in Alabama, South Carolina and Mississippi, the only three states in the nation
that have continued to segregate prisoners living with HIV. In March 2010, after
reviewing the findings in this report, the Commissioner of the Mississippi
Department of Corrections decided to terminate the segregation policy. The segregation
and discrimination against HIV-positive prisoners continues to this day in
Alabama and South Carolina, and constitutes cruel, inhuman and degrading
treatment in violation of international law.

Upon entering the state prison system in Alabama, South
Carolina or Mississippi, each prisoner must submit to a test for HIV. In
Alabama and South Carolina, and until recently, in Mississippi, the result of
this test will determine almost every aspect of a prisoner’s life for as
long as he or she is in prison. More than the severity of the crime, the length
of their sentence or almost any other factor, the HIV test will determine where
he or she will be housed, eat, and recreate; whether there will be access to
in-prison jobs and the opportunity to earn wages; and in South Carolina, how
much “good time” can be earned toward an early release. The
opportunity for supervised work in the community, often a key to successful
transition after release, will be either restricted or denied altogether.
During the entire period of incarceration, most prisoners who test positive
will wear an armband, badge or other marker signifying the positive results of
their HIV test.

The HIV policies in Alabama and South Carolina prisons stand
in stark contrast to those in 48 other states and the federal Bureau of
Prisons. The change in policy in Mississippi increased the isolation of Alabama
and South Carolina in this regard. Now, only in these two states are prisoners
with HIV isolated, excluded and marginalized as a matter of policy without
medical justification. Only these two states combine mandatory HIV testing with
immediate isolation and segregation, forcing prisoners to involuntarily
disclose their health status in violation of medical ethics and international
human rights law. Prisoners living with HIV in these states are still barred
from equal access to many in-prison jobs and programs. South Carolina is the
only US state that maintains an absolute prohibition on access to work release
for prisoners with HIV.

Segregation policies reflect outdated approaches to HIV that
no longer have any rational basis in science or public policy. In the early
days of the HIV/AIDS epidemic, fear and ignorance led to severely restrictive
public policies, including quarantine and segregation in prisons. In 1985, for
example, 46 of 51 state and federal prison systems segregated HIV-positive prisoners.
As science and societal attitudes evolved, however, prison officials eliminated
these policies. By 1994, only six prison systems had segregation policies, and
by 2005, that number was down to the three states examined in this report.
Today, integration of prisoners with HIV into the general population is the
national norm and represents generally accepted best practice in correctional
health.

Segregation of prisoners living with HIV without basis in
science or public policy cannot be justified under human rights treaties
ratified by the United States. Discrimination against prisoners with HIV not
only violates human rights law but contravenes international and US guidelines
for management of HIV in prisons. Moreover, additional violations of human
rights flow from the fact of segregation and compound the harsh consequences of
this policy for HIV-positive prisoners: involuntary disclosure of HIV status to
family, staff and other prisoners; loss of liberty by assignment to higher security
prisons; denial of work, program and re-entry opportunities; and policies that
promote, rather than combat, fear, prejudice and even violence against persons
living with HIV. These and other conditions documented in this report go well
beyond discrimination. Viewed cumulatively, conditions for HIV-positive prisoners
in Alabama and South Carolina constitute cruel, inhuman and degrading treatment
of prisoners.

This report is a collaborative effort by Human Rights Watch
and the American Civil Liberties Union National Prison Project (ACLU-NPP). The
project was, to a great degree, informed by the extraordinary history of the
ACLU-NPP in advocating for the rights of HIV-positive prisoners in these states
for more than two decades. Throughout that time, HIV segregation policies have
been controversial, contested, and intertwined with other fundamental issues of
human and civil rights, including the right to adequate medical care and humane
living conditions. For this report, Human Rights Watch, ACLU-NPP, and local
ACLU affiliates conducted interviews of current and recently released prisoners
in order to document the contemporary impact of continued housing segregation and
ongoing inequality in access to jobs, programs, and work release opportunities.
Human Rights Watch also interviewed HIV/AIDS service organizations providing
education and counseling services inside the prisons, and community leaders,
legislators, and others engaged in HIV policy issues in the state prisons.
Human Rights Watch and the ACLU interviewed prison administrators from Alabama,
South Carolina, and Mississippi.

Alabama and South Carolina continue to insist that
segregation is justified by the need to provide medical care and the goal of
preventing HIV transmission in prison. The evidence clearly indicates otherwise.
Prisons throughout the US and around the world meet their obligation under
international law to provide medical care for HIV without requiring prisoners
to forfeit other fundamental rights to privacy, confidentiality, and freedom
from discrimination. The prevailing treatment model recognizes that, as with
other chronic illnesses, people with HIV vary widely in individual health
status, and properly distinguishes between those who need few medical services
and those whose condition demands specialized or intensive care.

Similarly, everyone shares the goal of reducing transmission
of HIV in prison, but this goal can be met without resort to segregation.
Prison officials are obligated under international law to take steps to prevent
the spread of HIV and other disease, but such steps should be compatible with
other fundamental principles of human rights. Today, there is a developing body
of evidence demonstrating that harm reduction programs including condom
distribution, syringe exchange, and medication-assisted therapy for prisoners
dependent on heroin or other opioids, reduce the risk of transmission of HIV
and other sexually transmitted diseases, as well as hepatitis B and C in
prisons. These programs have been implemented in the US and abroad with no
negative consequences to prison security.

In addition to human rights concerns, the discrimination
documented in this report makes little sense as a matter of public policy.
Because the HIV units are located in high security prisons, low-custody prisoners
must serve their sentences in far harsher, more restrictive, and more violent
prisons, and at far greater cost to taxpayers. Otherwise eligible prisoners
miss out on opportunities for jobs, training programs and other services
designed to prepare prisoners for a productive return to society. Though work
release has been shown to reduce recidivism, prisoners with HIV have limited or
no access to these valuable programs.

In the Alabama, South Carolina, and Mississippi prison
systems, decades of segregation and discrimination have promoted an unsafe
atmosphere of fear, prejudice, and stigma against prisoners living with HIV. Although
prisoners with HIV unquestionably have sympathetic allies among prison staff
and general population prisoners, Human Rights Watch and ACLU-NPP found
significant evidence of harassment and hostility toward prisoners living in the
segregated units. This is a legacy of human rights violations that cannot be
undone overnight. Concern for the safety of prisoners whose privacy and
confidentiality has been violated requires that changes in policy should
include a choice, rather than a mandate, to enter the general population. In Mississippi,
prison officials agreed to relocate currently segregated prisoners after making
individualized determinations on a case by case basis. Human Rights Watch and
the ACLU-NPP plan to monitor this process closely to ensure the safety and security
of the prisoners during the transition.

Mississippi’s decision to reverse its long-standing
policy demonstrates that change is possible. Segregation of persons living with
HIV is no longer justifiable inside or outside of prison. Prison systems throughout
the US and around the world are providing medical care for HIV and preventing
its transmission while respecting human rights. Alabama and South Carolina can,
and should, end their own isolation by reforming these policies without delay.

Human Rights Watch and the ACLU-NPP call upon Alabama and South
Carolina to immediately:

End the policy of mandatory assignment to designated
housing for prisoners with HIV. Incoming prisoners identified as
HIV-positive after voluntary testing and counseling should be assigned to
housing that is appropriate for that individual under the relevant
classification plan. Prisoners currently housed in designated HIV units
should be given the option of re-assignment to housing that is otherwise
appropriate for that individual under the relevant classification plan.

End policies and practices that restrict or deny equal
access for HIV-positive prisoners to rehabilitative programs including
in-prison jobs, education, faith-based or honor dorms, pre-release
programs and re-entry training. End policies and practices that deny equal
access to work release and community corrections opportunities.

Implement harm reduction services consistent with
international standards including condom distribution, syringe exchange,
and medication-assisted therapy for prisoners dependent on heroin and
other opioids to reduce the risk of transmission of HIV, hepatitis B and C,
and sexually transmitted diseases.

Recommendations

To the Alabama and South
Carolina Departments of Corrections

Revise policy and practice on
confidentiality of medical records and information to ensure that
disclosure of HIV status occurs only to appropriate medical personnel or
with the prisoner’s consent. Medical records and information shared
with others should occur only under exceptional and clearly defined
circumstances set forth in the revised policy. The policy should contain
specific sanctions for prison staff found to be in breach of
confidentiality procedures.

Put an immediate end to the
policy and practice of placing prisoners in isolation cells following a
positive HIV test result or until the diagnosis is confirmed. Isolation of
prisoners with HIV should occur only on legitimate medical grounds, such
as co-infection with active TB, and only under the direction of
appropriate medical personnel.

Put an immediate end to the
policy and practice of mandatory assignment to designated housing for
prisoners with HIV. Incoming prisoners identified as HIV-positive after
voluntary counseling and testing should be assigned to housing that is
appropriate for that individual under the relevant classification plan. Prisoners
currently housed in designated HIV units should be given the option of
re-assignment to housing that is otherwise appropriate for that individual
under the relevant classification plan.

Put an immediate end to all
policies and practices that restrict or deny equal access for HIV-positive
prisoners to in-prison jobs, including kitchen, canteen, barbershop,
bloodhound detail, onsite construction crews, prison industries, and other
employment opportunities.

Put an immediate end to all
policies and practices that restrict or deny equal access for HIV-positive
prisoners to in-prison programs, including faith-based and honor dorms,
pre-release programs, re-entry training programs, and programs designed
for prisoners with short-term sentences.

Put an immediate end to all
policies and practices that restrict or deny equal access to work release
or community corrections programs. Ensure that criteria for admission to
these programs accurately reflect an individual’s ability to
participate in the program based upon the current state of his or her
health. Ensure access to all work release centers and programs on an equal
basis with prisoners who are not HIV-positive.

Implement harm reduction
services consistent with international standards including condom
distribution, syringe exchange, and medication-assisted therapy for prisoners
dependent on heroin and other opioids to reduce the risk of transmission
of HIV and other sexually transmitted diseases, as well as hepatitis B and
C.

Strengthen and expand HIV/AIDS education, counseling
and support programs for prisoners , including peer education, and expand
HIV/AIDS education and training for correctional staff.

To the South Carolina Department of Corrections

Replace the policy of mandatory HIV testing
with comprehensive voluntary counseling and testing programs that ensure
privacy, informed consent and confidentiality. Ensure that adequate and
accurate information, treatment and support are provided to inmates testing
positive for HIV.

To the Governors of
Alabama and South Carolina

Support the elimination of mandatory testing
for HIV in the state prisons.

Support the elimination of policies that
segregate and discriminate against HIV-positive prisoners.

Support laws and policies that ensure access
to voluntary and confidential HIV testing and comprehensive HIV/AIDS
prevention, care and treatment services.

Commission an independent review by
correctional and public health experts of state prison policies and practices
that segregate and discriminate against HIV-positive prisoners, of medical care
and treatment models for HIV in prisons, and of harm reduction programs for
disease prevention implemented in other prison systems. The commission should
include representatives of HIV/AIDS service organizations and advocates, and
former prisoners living with HIV/AIDS. Findings and recommendations should be
reported to the Governor and to the Legislature.

To the Legislatures of
Alabama and South Carolina

In Alabama, repeal state laws that require
mandatory testing for HIV in the state prisons.

Support legislation eliminating policies
that segregate and discriminate against prisoners with HIV.

Support laws and policies that ensure access
to voluntary and confidential HIV testing and comprehensive HIV/AIDS
prevention, care and treatment services.

Commission an independent review by
correctional and correctional health experts of state prison policies and
practices that segregate and discriminate against HIV-positive prisoners, of
medical care and treatment models for HIV in prisons, and of harm reduction
programs for disease prevention implemented in other prison systems. Findings
and recommendations should be reported to the Governor and to the Legislature.

To the Legislature of
Mississippi

Repeal state laws that require mandatory
testing for HIV in the state prisons.

To the President and Congress of the United States

Support legislation, regulations, and
policies promoting harm reduction programs in prisons, including condom
distribution, syringe exchange, medication-assisted therapy and other efforts
to reduce transmission of HIV and hepatitis B and C in prison and upon release.

Ratify the International Covenant on Economic,
Social and Cultural Rights.

Ratify the Convention on the Rights of
Persons with Disabilities.

To the US Department of
State

Address the policies that segregate and
discriminate against prisoners living with HIV in Alabama and South Carolina when
reporting to United Nations Human Rights Treaty Bodies pursuant to obligations
under the Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)and the International Covenant on Civil and
Political Rights (ICCPR).

To the United Nations
Human Rights Treaty Bodies, Special Rapporteurs and Human Rights Council

Call upon the United States as party to the
CAT and the ICCPR to put an immediate end to policies that segregate and
discriminate against prisoners living with HIV in Alabama and South Carolina.

Methodology

This report represents a collaborative effort by Human
Rights Watch and the American Civil Liberties Union National Prison Project
(ACLU-NPP). The project began as an examination of the segregation policies for
HIV-positive prisoners in three states: Alabama, South Carolina, and
Mississippi. After reviewing the findings of the report in March 2010, the
Mississippi Department of Corrections agreed to change its policy. This report
documents that decision but includes the testimony of HIV-positive prisoners in
the segregated unit at the Mississippi State Penitentiary at Parchman not yet
affected by the recent change in policy.

The report is based on testimony collected by Human Rights
Watch, the ACLU-NPP and ACLU local affiliates. In addition, the project was
informed by the expertise of the ACLU-NPP in the conditions of confinement for
HIV-positive prisoners in Alabama, South Carolina, and Mississippi, a
familiarity that has resulted from more than two decades of complex litigation,
negotiation and advocacy on their behalf. The ACLU-NPP regularly receives
correspondence from HIV-positive prisoners in these and other state prisons
describing general conditions, medical care, and access to in-prison programs
and work release. The ACLU-NPP maintains contact with a substantial number of
current and former prisoners who are, or were, participants in legal actions
addressing these issues. Attorneys from the ACLU-NPP and the local ACLU
affiliates meet and correspond regularly with prison officials in Alabama, South Carolina and Mississippi to discuss policies and practices relevant to prisoners
living with HIV.

In July, August, and September 2009, Human Rights Watch, the
ACLU of Mississippi, and the ACLU of Alabama conducted research to ensure that
the report included testimony describing current conditions for HIV-positive prisoners
in Alabama, South Carolina, and Mississippi. Confidential interviews were
conducted with 20 current or recently released prisoners at the Limestone
Correctional Facility and the Julia S. Tutwiler Prison for Women in Alabama,
the Mississippi State Penitentiary at Parchman, the offices of Palmetto AIDS
Life Support Services in Columbia, South Carolina, and Low Country AIDS
Services in Charleston, South Carolina. Prisoners also wrote to Human Rights
Watch and ACLU-NPP describing conditions in the HIV units in each of these
states. Pseudonyms are used to ensure the privacy and safety of those
interviewed or whose letters are quoted in the report.

Human Rights Watch and the ACLU interviewed directors and
staff members of service organizations providing HIV/AIDS education, counseling,
and re-entry services in these prison systems, as well as community leaders and
legislators involved in efforts to influence HIV/AIDS policies in the state
prisons.

Human Rights Watch and the ACLU interviewed prison
administrators from the Alabama, South Carolina, and Mississippi Departments of
Corrections. In these interviews, we shared preliminary findings from the report
in order to ensure accuracy and fairness. Alabama administrators also responded
to the preliminary findings in writing. Medical, classification, work release,
and HIV policy documents from the Alabama, South Carolina, and Mississippi
Departments of Correction were reviewed. Supplemental documents were requested
from the Alabama Department of Corrections under the Public Disclosure law,
with no response as of the date of publication. All documents cited in the
report are publicly available or on file with Human Rights Watch or the ACLU
National Prison Project.

Background

HIV and Prisons in the US

More than 22,000 people incarcerated in federal and state
prisons are living with HIV, a prevalence nearly four times higher than in the
US general population.[1]
Similarly, hepatitis B virus (HBV) and hepatitis C virus (HCV) prevalence is dramatically
higher among prisoners than in the community.[2] Many prisoners are
co-infected with HIV, HBV, and HCV.[3]
It is estimated that 12-15 percent of Americans with chronic HBV infection, 39
percent of those with chronic HCV infection, and 14 percent of those with HIV
infection pass through a US correctional facility each year.[4]

Incarceration of drug users contributes to the high rates of
HBV, HVC, and HIV in prison, as injection drug use is a key risk factor for all
three diseases. In the United States, 22 percent of people living with HIV and48 percent of people living with HCV contracted the disease through
injection drug use.[5]
Twenty percent of state prisoners in the US are held on drug-related charges;
in some states drug crimes account for as much as 40 percent of the prison
population.[6]
Many more are in prison for committing property crimes often related to
supporting a habit of drug use.[7]

While most prisoners living with HIV contracted the disease
prior to incarceration, the risk of transmission in prison is a reality,
particularly through unprotected sex or sharing injection equipment.[8]
Regardless of institutional regulations, sexual activity, both consensual and
coerced, is common in prisons around the world.[9] Prisoners who
inject drugs are likely to share needles, increasing the risk of HIV
transmission.[10]
Tattooing is another common prison activity that poses a risk of HIV and
hepatitis transmission from shared needles.[11]

Harm reduction in
Detention

In recent years, many countries have responded to high rates
of HIV and hepatitis in prisons by implementing harm reduction policies and
programs. In contrast to punitive approaches that attempt to eliminate,
stigmatize, and criminalize sexual activity and drug use, harm reduction
emphasizes public health, individual quality of life, and respect for human
rights. Prison harm reduction is a pragmatic approach that acknowledges that prisoners
engage in sexual activity and drug use while incarcerated and develops
strategies that reduce risk of negative health consequences and link prison
health to the health of the larger community.

According to the World Health
Organization (WHO), the United Nations Office on Drugs and Crime (UNODC ), and
UNAIDS,[12] a comprehensive set of interventions in prisons
should include:

information and education, particularly
through peers

provision of condoms and other measures to
reduce sexual transmission

needle and syringe programs

drug dependence treatment, in particular
opioid substitution therapy

voluntary counseling and HIV testing

HIV care, treatment and support, including
provision of antiretroviral treatment

There are many models for implementation of harm reduction
policies in correctional settings, both within and outside the US. For example,
large urban jails in New York, Los Angeles, San Francisco, Philadelphia, and
Washington DC make condoms available to prisoners, and a condom distribution
program has been successfully piloted in a medium-security state prison in
California.[13]
More than 50 prisons in 12 countries in Europe and Central Asia have
established needle and syringe exchange programs to prevent HIV and other
blood-borne diseases among prisoners.[14]
Bleach and other disinfectants to sterilize needles and syringes have also been
made available in a number of prison systems throughout the world.[15]
Additionally, medication-assisted therapy (MAT) such as methadone or
buprenorphine reduces the frequency of drug use and therefore lowers the risk
of infectious disease transmission, and has been shown to be feasible in a wide
range of prison settings in the US and abroad.[16]

HIV and Segregation

In the early days of the HIV/AIDS epidemic, HIV was poorly
understood by scientists, policymakers, and the public. Panic, fear and
confusion led to the passage of highly restrictive public policies and harsh
interpretations of existing criminal and mental health laws. Between 1980 and
1990, 25 states enacted broad public health laws under which people who engaged
in vaguely defined behaviors perceived to spread disease could be restricted,
quarantined or subject to criminal action.[17] At the same time,
scientists increasingly understood the modes of HIV transmission and effective
methods of prevention. Public health authorities began to dispel myths about
HIV transmission, emphasizing that HIV could not be transmitted through food or
food handling, insects, kissing, air, water, saliva, or tears.

When HIV first appeared in prison populations, prison policies
were very restrictive. HIV-positive prisoners were placed in isolation and had
no access to programs, work or activities. Prisoners died of AIDS in alarming
numbers; in 1995, 33 percent of all deaths in prison were attributable to
AIDS-related causes.[18]
The year 1995, however, also saw the advent of Highly Active Anti-retroviral
Therapy (HAART), treatment that would permit HIV to move into the category of
primary care along with other chronic diseases such as diabetes and
hypertension.[19]
As more became known about HIV, dramatic changes occurred in the HIV policies
of both state and federal prisons as well as local city and county jails. The
number of prison systems with segregated housing policies for prisoners with
HIV or AIDS dropped from 46 of 51 federal or state systems in 1985 to 6 of 51
in 1994.[20]

Today, only three states place all HIV-positive prisoners
into separate, specially designated housing units: Alabama, South Carolina and
Mississippi, with the policy in Mississippi to be phased out. In each of these
states, controversy and litigation have surrounded prison officials’
response to HIV. In 1987, the ACLU challenged Alabama’s segregation
policy for HIV-positive prisoners on constitutional grounds as well as under
the federal Rehabilitation Act. The 11th Circuit Court of Appeals
decided that the segregation policy did not violate the prisoners’
constitutional rights to privacy and confidentiality as it was reasonably
related to the legitimate correctional goal of preventing the spread of disease.
The Rehabilitation Act claims were sent back to the trial court for further
proceedings but ultimately dismissed by the 11th Circuit en banc.[21]
In 2004, the Southern Center for Human Rights challenged the adequacy of
medical care for HIV on behalf of prisoners at Limestone Correctional Facility
in Harvest, Alabama. The case was settled in 2004, but compliance issues
persisted throughout the two year period of the settlement agreement.[22]
Gradually, as a result of legal action and intense advocacy efforts by the ACLU
and other community leaders, access to programs, jobs, and activities has
improved significantly for prisoners living with HIV in Alabama. For example,
in July 2009 a new corrections administration in Alabama changed the work
release policy to permit the participation of HIV-positive prisoners.

In Mississippi, the ACLU pursued both litigation and
advocacy to address medical care, conditions of confinement, and opportunities
for programs for HIV-positive prisoners.[23]In
1999, the ACLU-NPP won an injunction requiring the Mississippi Department of
Corrections to provide all HIV-positive prisoners with medical treatment
consistent with federal guidelines.[24] In
2000-2001, at the urging of the ACLU and a coalition of state legislators,
prisoners’ family members and local advocates, the Commissioner of the
Mississippi Department of Corrections convened a task force to study HIV-positive
prisoners’ access to programs, appointing the ACLU to serve along with
officials from MDOC and the Mississippi public health department. In May 2001,
the Commissioner, adopting the Task Force’s recommendations, ordered that
all in-prison programs other than food service jobs be integrated.[25]
On the issue of work release, however, the Commissioner deferred decision. In 2004,
the United States District Court in the ongoing class action on behalf of
HIV-positive prisoners ordered the Department to permit HIV-positive prisoners
to participate in work release and community corrections programs.[26]
As of March 2010, Mississippi prison officials can be credited with ending the
segregation policy. According to Commissioner of Corrections Christopher Epps,
all incoming prisoners will be housed according to the criteria set forth in
the state classification plan rather than on the basis of their HIV status.[27]
Currently segregated prisoners will be evaluated for relocation on an
individualized, case by case basis to ensure their safety and security. [28]

In South Carolina, HIV-positive prisoners at the Broad River
Correctional Institution, proceeding without the assistance of counsel, asked
the court to determine that the testing and segregation policies violated their
constitutional rights. The trial court upheld the policies and this decision
was affirmed by the 4th Circuit Court of Appeals.[29]

Human Rights Standards

The Universal Declaration of Human Rights declares that
“no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”[30] The
prohibition is also a matter of jus cogens, a peremptory norm of customary
international law binding on all states.[31] This
principle is enshrined in the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) and the International
Covenant on Civil and Political Rights (ICCPR), two treaties signed and
ratified by the United States.[32] Cruel
and inhuman treatment includes that which inflicts severe pain and suffering,
physical or mental, without a legitimate purpose or justification, at the
instigation of or with the consent or acquiescence of public officials.[33]
Degrading treatment has been defined as “the infliction of pain or
suffering, whether physical or mental, which aims at humiliating the victim.”[34]

As stated in the ICCPR, prisoners have the right “to
be treated with humanity and with respect for the inherent dignity of the human
person.”[35]
Key to the interpretation of this right is the principle that the loss of
liberty itself should be the only form of punishment. The only rights forfeited
at the prison door are those that are “unavoidable in a closed
environment.”[36]
Prisoners retain rights to privacy, informed consent, confidentiality and the
right to be free from discrimination.[37]
The ICCPR protects the right of prisoners to rehabilitation, including access
to educational, vocational, and in-prison work programs. [38]

Informed Consent

In Alabama and Mississippi, prisoners are subjected to
mandatory testing as a matter of state law; in South Carolina, mandatory
testing is a Department of Corrections policy.[39] The
right to make decisions about personal life and health based on informed
consent is a bedrock principle of medical ethics and an integral part of
international human rights law.[40]
Mandatory testing per se interferes with the right to privacy, as the
right covers the inviolability of the individual’s person.[41]
Such interference could only be justifiable where it is medically necessary,
proportionate and non-discriminatory.

Mandatory HIV testing is incompatible with human rights
standards and contrary to international guidelines and best practice for
managing HIV in a correctional setting. The World Health Organization (WHO),
the United Nations Office on Drugs and Crime (UNODC), and the United Nations
Joint Programme on AIDS (UNAIDS) have taken unequivocal positions against
mandatory HIV testing in prisons. For example, the WHO Guidelines on HIV
Infection and AIDS in Prison state: “Compulsory testing of prisoners for
HIV is unethical and ineffective and should be prohibited.”[42]

Mandatory testing of prisoners is also suspect under the obligations
of the United States with respect to the prohibition on ill-treatment. The
Special Rapporteur on Torture has stated with regard to HIV testing that
“If forcible testing is done without respecting consent and necessity
requirements, it may constitute degrading treatment, especially in a detention
setting.”[43]

Confidentiality

Denial of the right to informed consent is compounded by
failure to maintain confidentiality of test results. The ICCPR protects an
individual’s right to privacy, which includes confidentiality of personal
and health information.[44]
The right to health established under the International Covenant for Economic,
Social and Cultural Rights (ICESCR) robustly protects the rights of privacy and
confidentiality in relation to one’s health status. Although the US has
signed but not ratified ICESCR, limiting its obligations under the treaty, as a
signatory it remains obligated to refrain taking steps that would undermine its
intent and purpose.[45]

International guidelines for management of HIV in
prisons emphasize the importance of guaranteeing the confidentiality of HIV
status in a prison setting.

The WHO Guidelines state:

Information on the health status and medical treatment of
prisoners is confidential and should be recorded in files available only to
medical personnel...Routine communication of the HIV status of prisoners should
never take place. No mark, label, stamp or other visible sign should be placed
on prisoners’ files, cells, or papers to indicate their HIV status.[46]

The UNODC ‘s “HIV/AIDS Prevention, Care,
Treatment and Support in Prison Settings” states that prison officials
should:

Ensure that prisoners are not involuntarily segregated or
isolated based on their HIV status and are not housed, categorized or treated
in a fashion that discloses their HIV status.[47]

Discrimination

Involuntary disclosure threatens to undermine other human
rights by exposing HIV-positive prisoners to the risk of stigma, discrimination
and violence from both staff and other prisoners. As stated by the UNODC:

Inside of prisons, people living with HIV/AIDS are often
the most vulnerable and stigmatized segment of the prison population. Fear of
HIV/AIDS often places HIV-positive prisoners at risk of social isolation,
violence and human rights abuses from both prisoners and prison staff.[48]

Under international guidelines for management of HIV in
prisons, administrators should take steps to combat stigma and discrimination.
Segregated housing and exclusion from programs, activities and work opportunities
promote, rather than reduce, stigma, isolation, and differential treatment. In
the absence of legitimate medical grounds, these policies are discriminatory
and incompatible with international human rights law and guidelines for health
and human rights in prisons.

As set forth in the WHO Guidelines:

Prisoners’ rights should not be restricted more than
is absolutely necessary on medical grounds...HIV–infected prisoners
should have equal access to workshops and to work in kitchens, farms and other
work areas, and to all programmes available to the general population. [49]

The European Committee for the Prevention of Torture, which
oversees the regional European equivalent of CAT has made it clear that
“there is no medical justification for the segregation of a prisoner
solely on the grounds that he is HIV-positive.” [50]

Policies that test without consent, segregate without
medical justification, and discriminate against prisoners with HIV are
incompatible with long-standing obligations of the United States under
international law, and also may fall foul of the standards in the most recent
human rights treaty signed by President Obama. On July 30, 2009 the United States signed the Convention on the Rights of Persons with Disabilities. This treaty
prohibits any exclusion, restriction or distinction on the basis of disability
that “has the purpose or effect of impairing the recognition, enjoyment
or exercise of all human rights on an equal basis with others.”[51]
The interpretation of the treaty in relation to people living with HIV has yet
to be determined,[52] but the
HIV policies in the Alabama, South Carolina, and Mississippi state prison
systems may not withstand scrutiny under this Convention.

Right to Health and
Harm Reduction Services

Finally, prisoners are entitled to medical care without
having to sacrifice other fundamental human rights. There is broad
international consensus that prisoners have a right to health care that is at
least equivalent to that provided in the general community.[53] Under
the ICCPR, prisoners have a right not to forfeit their privacy guaranteed under
the treaty, in order to enjoy their right to adequate medical care. [54]
The International Covenant on Economic, Social and Cultural Rights specifically
prohibits discrimination against people living with HIV/AIDS in obtaining equal
access to health care.[55]

Human Rights standards protect the right of prisoners to
access harm reduction services that reduce the risk of transmission of HIV,
hepatitis, and other infectious disease. The Special Rapporteur on Torture and
the Special Rapporteur on the Right to the Highest Attainable Standard of
Health have both addressed the importance of harm reduction measures in
detention settings, including syringe exchange programs and medication-assisted
therapy for opioid dependence. [56]

Cruel, Inhuman and
Degrading Treatment

Violations of any of the rights to which prisoners living
with HIV are entitled, be that informed consent, confidentiality, or freedom
from discrimination, without medical or other justification is unacceptable.
Taken cumulatively, detention conditions that require prisoners with HIV to
forfeit these rights solely on the basis of their medical status, while
subjected to an atmosphere that promotes prejudice, stigma and even violence
against them may constitute cruel, inhuman and degrading treatment. The
Convention Against Torture obligates the United States to take “positive
effective measures” to ensure the prevention, investigation and
elimination of any such treatment in any territory under its jurisdiction.[57]

Findings

Cruel, Inhuman and Degrading Treatment

Upon entry to the state prison systems in Alabama, South
Carolina, and Mississippi, prisoners are subjected to mandatory HIV testing at
the reception centers, which is followed by immediate isolation in the case of
a positive test. Human Rights Watch and the ACLU National Prison Project
(ACLU-NPP) found that isolation at reception and assignment of all HIV-positive
prisoners to designated “HIV/AIDS” units without medical justification
violates prisoners’ right to privacy and confidentiality by forcing
involuntary and widespread disclosure of personal health information.

Segregated housing promotes myths and misinformation about
HIV transmission among staff, other prisoners and the community. These messages
undermine educational efforts intended to combat stigma and marginalization,
creating instead an atmosphere of hostility and harassment that places the
safety of HIV-positive prisoners at risk.

Despite significant improvement in this area over the past
decade, prisoners in the HIV/AIDS units remain subject to differential and
discriminatory treatment that relegates them to harsher and more restrictive
environments and arbitrarily limits their eligibility for jobs, programs, and work
release. Many of these restrictions have the potential to lengthen the period
of incarceration and impair their ability to productively re-enter society.

Human Rights Watch and ACLU-NPP found that, taken together,
conditions of detention for HIV-positive prisoners in Alabama and South
Carolina violate the prohibition under international law against cruel, inhuman
and degrading treatment of prisoners. The same is true for HIV-positive
prisoners currently segregated in Mississippi and not yet affected by the
recently announced change in policy. The testimony of prisoners in Mississippi
is included in this report with the expectation that, in the future, conditions
for prisoners living with HIV will comply with human rights standards.

Isolation and Separation
of Prisoners with HIV

Ronald B. recalled arriving at the Kirkland Reception Center
in South Carolina in December 2008:

I arrived at Kirkland, and went through intake. They took a
blood test. I didn’t know my status. I was with everyone else, in a big
dorm, and they are letting us recreate and go to chow and all that. Suddenly
they come and pull you out...they put you in what was literally a dungeon, a
dark cell way down some stairs, and that’s it. I was in there 23 hours a
day after that, they fed me through the door, I couldn’t even take a
shower every day. You’d have to yell upstairs to reach anyone, and
sometimes they came, and sometimes they didn’t.[58]

John S. described a similar experience in Alabama in March
2009:

The process of entering the system and getting tested for
HIV is miserable. Prisoners arrive at Kilby which is the receiving unit, and if
you test positive they take you straight to lockup. They tell you you’ve
got AIDS and are going to die. They put you in the hole and now guys are staying
2- 3 months because they are so overcrowded, there are no beds in [designated
HIV units] dorm B or C.[59]

Female prisoners told of Alabama’s use, until
recently, of the “green room”, a small, sparsely furnished room
used for housing prisoners with mental health problems as well as for
segregating women who test positive for HIV:

The green room is scary because women are back there
yelling and screaming. If this is your first diagnosis, you really think
you’ve got AIDS and you’re dying.[60]

– Debbie A., Alabama

In each of the three states, prisoners with positive test
results were immediately separated from the group and placed in isolation cells
on 23 hour lockdown. People remained in these isolation cells for periods of a
week to several months, waiting first for a confirmation test and then for a
bed to open in the HIV unit. The absence of medical justification for placement
in isolation [61] was
compounded by the lack of education, information or counseling following the
positive test. Though one prisoner mentioned speaking with a counselor in South Carolina, most described the trauma of having little or no information provided about
the HIV diagnosis or what was going to happen to them in the prison system. In the
women’s unit in Alabama, a prisoner from the HIV unit is occasionally
permitted to visit the reception area and answer questions from those just
entering the system. For Leslie G., however, this was not the case:

When I came to the system, I went to the receiving unit.
They took my blood. Then they came and told me that I needed to be isolated,
and they put me in the green room. They didn’t give me any information, I
was crying. The nurse told me I was HIV-positive. I went off. I was in such a
state of shock. There was no chaplain, no medical people, they just said go in
this 4 x 4 cell and stay there.[62]

For many prisoners, placement in the isolation cells at the
reception unit was a devastating, and lasting, breach of confidentiality.

When they finally let you out of reception,
you got to sneak on the doggone bus because everybody knows by then
you’re HIV.[65]

–Andrew W., South Carolina

Segregated Housing

Once released from isolation at the reception centers,
HIV-positive prisoners are assigned to specially designated
“HIV/AIDS” housing units that are located in maximum-security
prisons. In Alabama, the B and C dorms at Limestone Correctional Facility house
approximately 250 male HIV-positive prisoners; 25-30 HIV-positive women are
housed in dorm E at the Julia S. Tutwiler Prison for Women. In South Carolina,
600 HIV-positive male prisoners are housed at the Broad River Correctional
Facility, in the Marion and Wateree dorms; 40 women are housed at the Camille
Griffin Graham facility in the HIV/AIDS unit known as Whitney B. Approximately 150
male HIV-positive prisoners in Mississippi are currently assigned to Buildings
A and B of the Mississippi State Penitentiary at Parchman; 25-30 female prisoners
living with HIV/AIDS at the Central Mississippi Correctional Facility, the
state’s only prison for women, are not segregated. Both the Broad River
facility in South Carolina and the Mississippi State Penitentiary also house
these states’ death row.

Prisoners testified that the assignment to designated
housing triggered a fear of exposure from other prisoners, many of whom they
know from their hometowns:

That’s the bad thing about it, everybody knows as
soon as you go in that dorm that you’re HIV-positive. I don’t think
it’s fair they’ve got us singled out like that, when folks have
come in and not told their families yet. I think we should have freedom of
choice whether to be tested or not.[66]

–Mary W., Alabama

You haven’t even dealt with it, you’re still in
denial, disbelief, but everybody knows and they call your family and friends.
You get letters from your people saying “we heard you’re dying of
AIDS.” [67]

–Lorna P., South Carolina

An Alabama prisoner wrote to say that his brother discovered
his status during a visit to the Alabama Department of Corrections website. As
recently as November 2009, the website listed the prisoner as housed in the
“Limestone Special Unit.” The Limestone facility description stated
that all prisoners with HIV/AIDS are housed in a segregated unit at that
facility. He wrote:

I wanted to tell my brother about my HIV status on my own,
rather than him finding out on the internet. This was very hurtful to me and I
don’t believe that they should be able to disclose my HIV status without
my permission.[68]

Until December 2009, the women housed in the HIV unit in
Alabama were listed on the website as living in the “Tutwiler
infirmary,” a designation certain to raise questions from family and
friends. Alabama’s public disclosure of prisoners’ health status on
its website was unnecessary and unjustified.

Further eroding confidentiality is the requirement that
HIV/AIDS unit prisoners wear visible insignia of that status on their person.
At Limestone Correctional Facility in Alabama, male prisoners from the HIV/AIDS
dorms must wear white armbands at all times. Although prisoners from some of
the other dorms also wear armbands, it is generally known that the color
associated exclusively with the HIV/AIDS dorm is white. In South Carolina, male
prisoners from the HIV unit carry a blue dot on their identification badges,
while the women’s uniforms bear the name of the HIV/AIDS dorm,
“Whitney B.”

The thing I have the most trouble with is the armband. It’s
disclosing my medical confidentiality to the whole prisoner population without
my consent. How do I want you to know my business? It’s depressing,
it’s stressful, being treated this way.[69]

John S. recalled an incident in the visiting room:

Someone saw the armband and said ‘that guy’s
got the ninja [HIV].’ Then your people find out and you haven’t
even told them yet. That’s not right. [70]

Requiring HIV-positive prisoners to wear insignia announcing
their medical status is just one of the ways that they are stigmatized and
singled out for differential and often discriminatory treatment. In South Carolina, prisoners from the HIV/AIDS unit eat separately in the dining hall. They
are permitted to attend church services, but must sit together on one side of
the chapel. In Alabama, HIV-positive prisoners are allowed to attend trade
school but they must enter and exit separately and are called out separately
during the periodic headcounts. HIV-positive prisoners can attend classes for
substance abuse at the therapeutic community program, but then must leave after
the class is over as they are not permitted to reside in the community with the
other prisoners. Ken D. said “This messes with your head. You can’t
get the benefit of it because you get upset about how they treat you.”[71]

Harassment and
Discrimination

Fear, Prejudice and
Stigma

In South Carolina, prisoners described the experience of
being ordered to turn their faces to the wall when general population prisoners
passed them in the halls. Joseph T. stated, “I heard one officer telling
guys from another dorm, ‘that’s the HIV unit, stay away from them
now. You don’t want to catch that stuff do you?’”[72]

An HIV counselor visiting the women’s unit in South
Carolina heard an officer tell a prisoner, ‘don’t cough on me,
you’ve got that package.’ The counselor told Human Rights Watch and
ACLU-NPP, “They treat the women in the HIV unit with no respect.
There’s no excuse for how they speak to them.”[73]

Mary W. said that most of the officers assigned to the
women’s unit in Alabama are “okay, but when temps fill in for the
regular officers, they act like we’re contagious. They don’t come
into the dorm, they stay out in the hall because they don’t want to be
near us.[74]

Mississippi prisoner Larry P. stated:

There is no confidentiality at all about our HIV, everyone
knows. We’re not referred to as HIV-positive, but as ‘the AIDS
guys’. Officers wear gloves when they come onto our tiers.[75]

Mississippi prisoners described constantly being called
“punks and faggots—the guards assume we’re all gay.”[76]
Another Mississippi prisoner, Michael G., stated, “the guards tell us to
‘get our sick asses out of the way’ when they pass us in the
hallway.” [77]

In South Carolina and Mississippi the HIV-positive prisoners
eat by themselves in the dining hall, and the prisoners who serve them
reportedly display attitudes ranging from fear of contact to spitting and
putting other bodily fluids into the food. [78] According to
Mississippi prisoner Tom E., “the kitchen staff shove the trays at us to
avoid accidentally touching us.”[79]

Each of these prison systems provide periodic information
sessions to both staff and prisoners about HIV/AIDS. However, the decision to
segregate HIV-positive prisoners actively promotes myths and misinformation
about the disease. Separation that has no medical justification facilitates
prejudice, stigma, and discrimination within the prison and to community
members aware of these policies. Despite the gradual improvements that have
taken place in permitting HIV-positive prisoners to access programs, jobs and
other in-prison activities, segregated housing remains incompatible with
acceptance, inclusion and equality. As one prisoner put it, “they do
education sometimes on HIV, but how can they say we’re the same as
everyone else when they don’t treat us that way?”[80]

Compromised
Classification, Safety and Security

Assignment to the HIV/AIDS housing unit is not based on the
factors that corrections officials normally consider for safely classifying prisoners,
but solely on the result of the HIV test. Indeed, Alabama, South Carolina, and
Mississippi disregard their own classification plans when it comes to housing
HIV-positive prisoners. Discrimination based on HIV status also affects the
length of incarceration and the conditions of confinement for HIV-positive prisoners.
Permitting HIV status to be determinative of housing assignment can also place
the safety of prisoners at risk.

Alabama, South Carolina, and Mississippi have developed
detailed classification policies that are intended to promote individualized
determinations for housing, programs and other aspects of prison life. These
policies are based upon the classification standards set by the American
Correctional Association, an expert body whose guidelines state that prison
officials should:

Use the classification process to assign individuals to
different levels of control on the basis of valid criteria regarding risk (to
self and others) and individual needs, matching these characteristics with
appropriate security, level of supervision, and program services.[81]

In South Carolina, for example, the classification
policy states, “an inmate’s custody should be based on behavior and
criminal history” and lists no fewer than 10 factors to consider in
determining an prisoner’s custody level, including history of assault,
escapes, disciplinary offenses, detainers, gang membership and others.[82]

Many prisoners told us that, if it were not for their HIV
status, they would be eligible for assignment to minimum or medium security
units based on the variety of factors that are taken into consideration under
the classification policy adopted by each prison system. In South Carolina and
Mississippi, the HIV/AIDS units are located in maximum security prisons that
also house death row. In South Carolina, prisoners with sentences as short as
90 days are assigned to the HIV unit at Broad River, a facility local
newspapers describe as “a maximum security prison housing South
Carolina’s most dangerous male criminals.”[83]

The location of the HIV/AIDS units in maximum security
prisons proves problematic for prisoners whose security and custody status
would normally be in the medium or minimum range. Prisoners incarcerated at
maximum security prisons suffer a significant loss of liberty and privileges by
assignment to high security prisons where low custody status is not available,
movement is restricted, other prisoners pose a greater risk of violence,[84]
and the atmosphere is much more tense with frequent facility-wide lockdowns.[85]

Prisoners complained of chronic lockdowns due to
disturbances in other areas of the prison:

Right now my dorm has been locked down from Saturday 29th
day of August through now September 6th. I have had only one shower,
also the way they feed us during lockdowns is inhumane.[86]

—Jay J., South Carolina

Permitting HIV status to be determinative of housing
assignment can compromise safety and security. In Alabama, the HIV/AIDS unit is
located at Limestone Correctional Facility, a medium-security prison housing
prisoners with both medium and minimum custody designations. Alabama officials
told Human Rights Watch and the ACLU-NPP that there are no deviations from the
classification plan for HIV-positive prisoners.[87]
However, all medium and minimum custody prisoners living with HIV are placed in
the segregated unit at Limestone. Disregard of the factors emphasized in the
classification policies for housing determination such as criminal history,
behavior in prison, tendencies toward predation or aggression, can lead to
incidents such as that occurring in the HIV/AIDS unit at Limestone on June 22,
2009. On that date, one prisoner savagely attacked another prisoner with a
baseball bat, fracturing his skull and also injuring another prisoner who tried
to help the victim. The attacker had a sentence of life without parole, while
the victim’s sentence was less than five years.[88]
Without knowing the behavioral history of the prisoners involved, it is not
possible to determine whether, outside of the HIV/AIDS unit, they would have
been housed together. What is certain, however, is that the decision to house
them together was not based on security considerations or other factors set
forth in the state classification plan, but because both of them tested
positive for HIV.

Segregation policies that perpetuate fear, prejudice and
stigma also place prisoners’ safety at risk. Prisoners in
Mississippi’s unit 29 described an atmosphere charged with hostility from
staff and other prisoners. In Mississippi, both prisoners and guards signed
petitions protesting the transfer in 2008 of the HIV housing units to Buildings
A and B in Unit 29 where prisoners with HIV would have more contact with the
general population during the day. HIV-positive prisoners sent to disciplinary
lock-up have experienced beatings from other prisoners while housed in that
cellblock.[89]
Larry P. stated:

One time an HIV-positive prisoner got placed by accident in
C or D building...when he was moved and walked over to A and B buildings, the prisoners
there went crazy when they knew they’d had an HIV-positive prisoner in
their midst. I fear for my safety because of the ignorance in this place about
this disease.[90]

Particularly in Mississippi, HIV-positive prisoners
expressed fear that if the segregation policy was discontinued, they would
suffer violence in the general population because their HIV status was already
known.[91]

Prisoners who suffer abuse or ill treatment by other prisoners
often have no recourse, as prison staff themselves frequently treat them with
disrespect. In South Carolina, an ex-prisoner told Human Rights Watch and the
ACLU-NPP that homophobia and prejudice on the part of correctional officers
assigned to the HIV/AIDS unit compromised his security. Joseph T., who was in Broad River until June of 2009, said he was raped by three other prisoners but when he
complained, nothing was done.

The officers told me, ‘oh you’re all gay, we
can’t get involved in that.’ Another said to me ‘all you guys
have sex together, you wear makeup, we don’t want to hear it’.[92]

Joseph explained that after hearing the attitude of the
officers, he never filed a formal complaint, grievance or report.

Restricted Access to
Jobs, Programs and Work Release

When the designated HIV/AIDS units first opened in the
1990’s, prisoners in Alabama, South Carolina and Mississippi had
virtually no access to jobs or programs in the general population. One South Carolina prisoner recalled,

They literally put up a fence around us and cut us off from
everything and everybody. It was like they said ‘we’re going to
take all you guys who have this virus and put you on an island by yourself.’
It took a lot out of me, it really did.[93]

Though the segregation policy has remained in place, a
combination of legal action, intense advocacy, and more progressive
correctional administration has led to improved access to activities open to
the general population. Prisoners from the HIV/AIDS units now attend classes,
religious services and substance abuse programs, and they are eligible for
certain prison industry and labor crew employment. Significant discrimination
persists, however, despite the lack of medical justification for restrictions
on employment, programs and work release. Opportunities are not yet equal for prisoners
assigned to the segregated units.

In-prison Jobs

In each of the three states HIV-positive prisoners are
prohibited from working in the kitchen, dining hall or canteen. This policy has
no medical justification and has been expressly rejected by the scientific
community. The US Centers for Disease Control and Prevention (CDC) states:

There is no known risk of HIV transmission to co-workers,
clients, or consumers from contact in industries such as food-service
establishments (see information on survival of HIV in the environment).
Food-service workers known to be infected with HIV need not be restricted from
work unless they have other infections or illnesses (such as diarrhea or
hepatitis A) for which any food-service worker, regardless of HIV infection status,
should be restricted.[94]

Particularly disturbing is Alabama and South
Carolina’s admission that the policy has no medical basis but defers to
fear and prejudice that exists among the prisoner population. In Alabama,
prison officials took a “survey” of prisoners in the Limestone
facility and found that “80 percent of those polled were opposed to
HIV-positive prisoners working in food service.”[95]
Alabama officials told Human Rights Watch and the ACLU-NPP that the ban was
justified because, they asserted, general population prisoners would not
tolerate “openly gay” prisoners as food service workers, the
assumption apparently being that prisoners with HIV must be “openly
gay”. Human Rights Watch and the ACLU-NPP confirmed with Alabama
officials that “openly gay” prisoners, regardless of HIV status,
are also barred as a matter of policy from working in the kitchen. [96]
This policy has serious human rights implications that demand further
investigation.

The approach to these issues by Alabama officials demonstrates
how prejudice against persons with HIV is often inextricably linked with homophobia.
Moreover, Alabama officials conceded that but for the segregation policy that
identifies HIV-positive prisoners to the rest of the population, prisoners
living with HIV could work in the kitchen without incident.[97]
Thus the “security” problem is one created solely by the officials
themselves by compelling involuntary disclosure of prisoners’ HIV status
to other prisoners.

In South Carolina, the prison HIV/AIDS policy states on page
3, “No HIV/AIDS positive prisoner shall be assigned to kitchen detail.
The perceived risk of transmission by food service becomes a severe management
problem.” Rather than addressing this erroneous perception, South
Carolina has chosen to deny an entire category of in-prison employment on the
basis of HIV status. Again, prison officials cite a “security”
issue that arises only from their own policy of segregation. Kitchen work can
be beneficial to a prisoner in several ways. Many prisoners worked in kitchens,
cafes, or restaurants prior to incarceration, and continued employment in that
area could help them upon re-entry. Moreover, in many prisons, including South
Carolina, kitchen work offers the opportunity to earn high amounts of
“good time” credits as well as wages. As Bob C. explained,
“if I could get a kitchen job I could cut down my time a whole lot—I
could get 10 months of good time as opposed to 4 months with my job in the
yard.”[98]

Prisoners with HIV in South Carolina are ineligible for
other jobs classified as “special” and reserved for prisoners with
good behavior and low security status, e.g. bloodhound detail and in-prison
construction crews. In South Carolina, no prisoners with HIV are eligible to
work at the Director’s residence. These are elite jobs that permit prisoners
to accrue significant “earned work credits” that can apply toward
early release from prison. [99]
Denial of access to these jobs is categorical and purely discriminatory, with
no attempt to assess an individual’s health status or ability to perform
the work.

In Mississippi the access of HIV-positive prisoners to
in-prison jobs is limited. Jobs in the kitchen, barbershop, selected prison
industries such as textiles and carpentry, and administrative offices are not
open to prisoners from the HIV/AIDS units. The primary job available is ground
crew, which involves cleaning up and cutting the grass around unit 29. Such
severe restriction of work opportunities is discriminatory and contradicts Mississippi’s stated policy promoting rehabilitation and to “assist all
offenders in becoming productive, law-abiding citizens.”[100]

Barring prisoners with HIV from jobs promotes fear, stigma
and discrimination. There is, for example, no health-related justification for
prohibiting prisoners with HIV from working in the barbershop. Indeed, the US
Department of Justice has recently issued guidelines clarifying that such a
prohibition outside of prison violates the Americans with Disabilities Act.[101]
It is no coincidence that in Mississippi, prisoner barbers display negative
attitudes toward prisoners from the HIV-segregated units. Michael G. told us,
“The prisoners who cut our hair are real quick about it and don’t
want to give us real haircuts.”[102]

Commissioner Epps has assured Human Rights Watch and the
ACLU-NPP that under Mississippi’s new policy, HIV-positive prisoners will
be eligible on an equal basis for all in-prison jobs including the kitchen and
the barbershop.[103]

In-Prison Programs

HIV-positive prisoners also face program restrictions,
many of which also have the potential to lengthen the time they spend in
prison. HIV-positive prisoners in Alabama are not permitted to reside in either
the “faith-based” or the “honor” dorms. These are
opportunities earned by good behavior in prison and are likely to be looked
upon favorably by the Parole Board. Moreover, the Governor of Alabama recently
launched a “faith-based re-entry initiative” that links prisoners
to faith-based support groups in the community.[104]
One would expect that prisoners from the faith-based dorms would be likely
candidates for access to this important re-entry assistance. “Therapeutic
community” programs have been identified by experts as among the most
effective models for in-prison substance abuse treatment.[105]
In Alabama, however, HIV-positive prisoners are not eligible for the
residential aspect of these programs. Rather, they are permitted to attend the
classes but must return to the HIV/AIDS unit at the end of each day.
HIV-positive prisoners are barred completely from the residential pre-release
program at Limestone, a new initiative that provides intensive vocational and
rehabilitative services to prisoners preparing for return to the community.

As an Alabama prisoner explained,

I have only a year to go before parole. I can drive a
tractor, I have my driver’s license. I should be getting my custody
lowered, getting a job, looking at pre-release programs, things that can help
me when I get out of here. But I can never get my custody lowered because
I’m HIV.[106]

In South Carolina, there are designated pre-release centers
for male and female prisoners, but HIV-positive prisoners are ineligible for
transfer to these facilities.[107]
In South Carolina, prisoners with HIV are ineligible for the Short-Term
Offender Program (STOP), a program designed specifically for the needs of prisoners
with sentences of one year or less that “provides practical and useful
life skills training developed to reintegrate the offenders back into the
society.”[108]

Work Release

Work release programs offer prisoners the opportunity to
reside in low security facilities while working for either a state or a private
employer. Prisoners are permitted to keep a percentage of their wages while
demonstrating responsibility and establishing a relationship that might lead to
employment when their sentence is completed. In states such as South Carolina,
prisoners are able to earn union wages, collect unemployment compensation and
enjoy other benefits of employment while completing their sentence. Corrections
officials in Alabama, South Carolina and Mississippi have recognized the
importance of work release opportunities to achieving a successful re-entry
into society. As stated in the Alabama Department of Corrections Work Release
policy:

The fundamental purposes of Alabama’s work release
program are to assist selected prisoners in preparing for release and to aid in
making the transition from a structured institutional environment back into the
community.[109]

Integrated work release programs, like integrated housing
for HIV-positive and non-positive prisoners, are the national norm. In a survey
conducted by the ACLU-NPP, 25 of 27 states with work release programs reported
no restriction on participation for HIV-positive prisoners.[110]

In Alabama, HIV-positive prisoners were ineligible for work
release until July 2009, when the Department of Corrections, in response to
extensive advocacy efforts by the ACLU, reversed its policy barring prisoners
with HIV from participating. Commissioner of Corrections Richard Allen described
the change in policy as “doing the right thing,” stating,
“We’ve looked at how the attitude about AIDS has evolved from
people being terrified of it to it being a disease that’s difficult to
transmit and one that can be managed.”[111] However, Human Rights
Watch and ACLU-NPP have concerns about unnecessary restrictions that remain in
Alabama’s work release policy.

Although there are 11 work release centers in Alabama
(9 for men, 2 for women) under the revised policy, HIV-positive men may be
assigned only to the center in Decatur; women may be assigned only to
Montgomery. Restriction to a single center is likely to unnecessarily prevent
many prisoners from getting a job near their home and family. Limitation to a
single center is also likely to result in a “cap” on the number of
HIV-positive prisoners who can participate in work release once the single
center reaches its capacity.

The policy also imposes unnecessarily restrictive medical
clearance criteria. HIV-positive prisoners, if taking HIV medication, must have
a viral load of “less than 48 for four consecutive readings, and a CD4
count greater than 450” to be eligible for work release. If not taking
HIV medication, prisoners must have “a viral load of less than 1000 and a
CD4 count greater than 700.”[112]But, as
recognized in federal statutes and regulations, an HIV-positive person’s
ability to work involves an analysis of clinical symptoms and functional
capacities, not an arbitrary and exclusive reliance on CD4 and viral load test
results.[113]The policy’s imposition of
numerically-driven cutoff points for eligibility is virtually guaranteed to
arbitrarily exclude many prisoners from the program without any legitimate
medical justification.

After reviewing the policy, Josiah Rich, M.D., professor of
Medicine and Community Health at Brown University and medical director of
HIV/AIDS Services for the Rhode Island Department of Corrections stated,

Alabama’s criteria bears no
relation to an individual’s capacity for employment. Individuals living
with HIV may be fully able to work even if they have CD4 and viral load counts
different from than that listed in the criteria.[114]

In South Carolina, HIV-positive prisoners are barred from
all work release programs.[115]
Several people recently released from the HIV/AIDS units described the
importance of work release to their transition from prison:

It’s so hard to find an offender-friendly employer,
but with work release you get a chance to prove yourself. I would have been
eligible because my custody level was minimum, but I couldn’t go because
I have HIV. That’s not right. Without work release, I went out the same
way I came in.[116]

With work release, you’ve got a chance to earn some
money. I know that UPS (United Parcel Service) has been hiring guys from the
program. I could get an apartment, maybe a car.[117]

Work release determines whether you’re going to make
it or not. If you can be near your family, they can fight for you and that can
keep you from going back to prison.[118]

Lorna P. told Human Rights Watch and ACLU-NPP:

In South Carolina, the work release camp is right next door
[to the HIV unit]. So you’re looking at it through the barbed wire, and
you’re so close but yet so far.[119]

In Mississippi, HIV-positive prisoners have been permitted
to participate in work release since 2004, when the Department of Corrections
was ordered by the federal court to change its policy as a result of litigation
brought by the ACLU-NPP. According to Commissioner Epps, his decision to change
the segregation policy was based, in part, on the successful integration of
HIV-positive prisoners at the work release centers in Mississippi.[120]

State Arguments for
Continuing to Segregate Prisoners with HIV

“In
order to ensure the optimum care, health and security of all inmates at Limestone,
HIV-positive inmates continue to be housed separately from other inmates.”

Administrators from Alabama and South Carolina repeatedly
advanced two rationales in support of the policy of segregation: first, that
such policies are necessary to facilitate the delivery of adequate medical care
for HIV/AIDS; and second, that such policies are necessary to reduce the risk
of transmission of HIV within the prison to other prisoners or to staff.[122]
These assertions are unsupported by medical evidence and best practice, and
plainly violate the rights of HIV-positive prisoners. Medical care and
transmission prevention are indeed essential goals for prison administrators,
but both may be achieved without sacrificing the rights of prisoners with HIV.

Medical Care for
HIV/AIDS

Segregation is inconsistent with the position taken by
leading correctional health experts in the United States. The National
Commission on Correctional Health Care (NCCHC) “endorses the concept that
medical management of HIV-positive prisoners and correctional staff should
parallel that offered to individuals in the noncorrectional community.”[123]
The NCCHC Position Statement on HIV further provides that:

Decisions on housing HIV-positive prisoners should be based
on what is appropriate for their age, gender, and custody class. NCCHC opposes
routine segregated housing for HIV-positive prisoners. HIV-positive prisoners,
like any other prisoner, may require a higher level of care that may not be
available at all institutions. This is a clinical judgment, based upon the
acuity of care required for the patient. Patients with HIV infection may
require isolation if, for example, they have pulmonary tuberculosis. HIV
patients should not be medically isolated solely because of their HIV status.[124]

Best practice for HIV treatment and services is not
“one size fits all.” People with HIV vary widely in individual
health status, with many living for years without symptoms and without need for
medication. Those suffering from opportunistic infection or experiencing
complications may need hospitalization and other targeted services. There is no
one medication regimen that is "best" for all patients infected with
HIV. The time to start antiretroviral therapy (ART) for HIV depends upon
several factors, including the person's T cell count, age, underlying medical
conditions, history of an AIDS-defining illness, and the person's willingness
to commit to lifelong treatment. Proper utilization of ART requires ongoing
patient monitoring to assess therapeutic response and to identify adverse
events related to chronic administration of potentially toxic medications.
Patients who are started on ART should generally have follow-up within one to
two weeks to ask patients about adverse effects, adherence, and prevention of
transmission. Once patients are clinically stable on their ART regimen, medical
visits generally decrease to every three months.[125]

Clearly, segregation is not intrinsically related to high
quality medical care. When prisoners were first segregated In Alabama and
Mississippi decades ago, they initially received such poor care that federal
court action was required.[126]
In the US, forty-seven other states and the federal Bureau of Prisons provide
medical care to prisoners with HIV without segregating them from other prisoners.
These include Florida and New York, the two states with the highest numbers of
prisoners living with HIV. These states, as well as Texas, California and many
others, make individual health determinations and distinguish between prisoners
needing routine medical care and prisoners requiring more intensive services. Prisoners
in the latter group are transferred to medical units where prisoners with a
variety of medical conditions, not only HIV, have greater access to specialty
care. [127]

In Alabama and South Carolina, HIV-related primary care is
rendered at the segregated housing units by medical staff assigned specifically
to those units and trained in HIV and AIDS. According to prison officials, the
presence of specially trained staff in the housing units has improved the level
of care significantly. In South Carolina, officials maintain that assigning all
prisoners with HIV to the Broad River facility in Columbia increases access to specialty
care from doctors at the nearby University of South Carolina Hospital. As
stated by the South Carolina Department of Corrections, “we are proud of
the level of medical care we provide to prisoners with HIV.”[128]

Human Rights Watch and ACLU-NPP make no findings in this
report regarding the quality of the medical services provided to prisoners with
HIV. Rather, the report focuses on the compatibility of the state response to
HIV with fundamental principles of human rights. Prisoners should not, and need
not, be asked to forfeit their human rights to privacy, confidentiality and
non-discrimination in order to receive adequate medical care.

Prevention of HIV
Transmission

Officials in Alabama and South Carolina claim that
segregation is necessary to reduce the risk of HIV transmission within the
prison. Alabama Commissioner of Corrections Richard F. Allen has frequently
stated that the HIV transmission rate in that state’s prisons is
“almost zero” and that segregation is essential in order to
“keep it that way.”[129]
Human Rights Watch and ACLU-NPP have requested documentation of Alabama’s
transmission rates, with no response as of the date of publication. South
Carolina and Mississippi have not studied transmission rates nor assessed the
impact of segregation on reducing the risk of transmission.[130]

To be sure, the presence of high risk behavior in prisons
such as sexual activity, injection drug use and tattooing is well documented.[131]
However, data on in-prison rates of transmission of HIV are scarce. Studies thus
far have documented rates of transmission that are “low, but not
negligible.”[132] One
study found that between 1988 and 2005, 88 prisoners seroconverted to HIV in
the Georgia State Department of Corrections, with transmission related to
sexual activity and tattoos.[133] A 2006
study in a southeastern state identified a .63 percent seroconversion rate (33
of 5,265 male prisoners) over a period of 22 years.[134]

Today, there is a developing body of evidence demonstrating
that harm reduction programs including condom availability, syringe exchange
and medication-assisted therapy for prisoners dependent on heroin and other
opioids reduce the risk of transmission of HIV and other sexually transmitted infections
(STIs) as well as Hepatitis B and C in prisons.[135]
None of these approaches are available in any of the three states, though
Mississippi does make condoms available for prisoners on conjugal visits. HIV-positive
prisoners, however, are not eligible for conjugal visits.[136]

In 2007, the World Health Organization (WHO), the United
Nations Agency on AIDS (UNAIDS), and the United Nations Office on Drugs and
Crime (UNODC) conducted a world-wide literature review evaluating the efficacy
and feasibility of prison condom distribution programs. The report found that
prisoners use condoms to reduce transmission of HIV and other STIs, with no
negative consequences to security, and with a high level of acceptance by staff
and prisoners once the program is introduced. [137]
By decreasing risky behavior such as needle sharing and unprotected sex, harm
reduction programs provide an evidence-based approach to HIV prevention that
remains respectful of human rights.

In addition to human rights concerns, segregation of
HIV-positive prisoners is not recommended as a matter of public health. Prisons
generally can be incubators for infectious disease, but close confinement of
individuals with compromised immune systems may spread infection more rapidly
through this more vulnerable population. Two of the three prisons examined in
this report have experienced serious outbreaks. In 2000, a tuberculosis
outbreak infected 32 prisoners in South Carolina’s Broad River
Correctional Facility HIV unit and in 2004 there was a widespread outbreak of Methicillin-resistant Staphylococcus aureus (MRSA) infection
in the HIV unit in Mississippi.[138]
The South Carolina TB outbreak is cited by WHO, UNAIDS and UNODC in its
conclusion that: “Policies of mandatory testing and segregation can be
counterproductive and have negative health effects for segregated
prisoners.”[139]
Infection control for TB and MRSA has also been problematic in the HIV unit at
Limestone.[140]

Segregation also may lead to a false sense of security among
prisoners in the general population that HIV has been effectively removed,
thereby increasing the likelihood of unsafe sexual, injection or tattooing
behaviors. Within the segregated units, unsafe behaviors increase the risk of
re-infection with new strains of HIV, other sexually transmitted diseases and
hepatitis B and C.[141]
The reliance on segregation in lieu of comprehensive harm reduction measures to
prevent disease transmission places the health of the entire prison population
at risk.

Everyone shares the goal of reducing transmission of HIV in
prison, but this goal can be met without resort to segregation. Prison
officials are obligated under international law to take steps to prevent the
spread of HIV and other disease, but such steps should, and can, be compatible
with other fundamental principles of human rights.

Segregation is Bad
Public Policy

Segregation and discrimination against prisoners with HIV
not only violates the human rights of the individuals concerned, it is also
expensive, in both financial and public health terms. Policies that support the
myths, misinformation and stigma surrounding HIV/AIDS are counterproductive to
efforts to educate, encourage testing and reduce risky behavior. Discrimination
against people with HIV drives the disease further underground among prisoners,
staff and in the community.

Policies that restrict the opportunity of a prisoner to
work, to earn “good time” or other credit toward release keep
people in prison longer, and thus make little sense, particularly in difficult
economic times. In Alabama, incarceration costs an average of $41.00 per day
per prisoner; in South Carolina, that cost is $35.00 and in Mississippi, $40.00
per day.[142] In
addition, many HIV-positive prisoners are housed in maximum security prisons
when lower custody facilities are less expensive. For example, in Mississippi,
it costs $52 dollars per day to house a prisoner in maximum security at the
Mississippi State Penitentiary (where the HIV unit is located) compared to $32
dollars per day at a medium or minimum security facility, an additional $7,300
per year per prisoner. [143]

Work release and community corrections programs also are
more cost-effective than continuing to incarcerate a prisoner until the last
day of his or her sentence. In 2003 the ACLU conducted a study of the cost
savings to Alabama if prisoners from the segregated HIV units were placed into
work release at the same rates as other prisoners. The report found that due to
a $5,000-7,000 difference in the annual cost of incarceration compared with the
cost of work release, the state could save between $306,000 and $372,000 per
year by repealing the prohibition on work release for prisoners with HIV.[144]
Alabama has since done so, but the work release policy still unreasonably
limits eligibility, thus reducing the amount of savings that could be realized.

Prisoners earning money from work release jobs pay child
support, victim restitution, and often contribute to the cost of their room and
board while on the program. In South Carolina, for example, prisoners
contribute 20 percent of their wages to victim restitution and 35 percent to
child support. These requirements have generated millions of dollars for the
South Carolina Victims Compensation Fund.[145]

Finding and maintaining a job is a critical element of
prisoner re-entry. Work release programs have been shown to significantly
reduce recidivism.[146] Prisoners
on work release establish relationships with outside employers. If they remain
employed after release, they become tax-paying citizens. As a matter of fiscal
policy, promoting, rather than restricting, work release opportunities is the
more cost-effective approach.

Similarly, targeted pre-release programs can improve a prisoner’s
chances of a successful transition to the community. South Carolina’s
STOP program provides an example. The South Carolina Department of Corrections
describes the Short Term Offender Program (STOP) as follows:

The STOP Unit is a fast track program addressing the needs
of male offenders that have shorter sentences, one year or less. It provides
practical and useful life skills training, education, vocational,
rehabilitation, and employment assistance for offenders who may not have
previously had access to intensive institutional programs, pre-release
preparation or community resources.[147]

Yet HIV-positive prisoners with sentences as short as 90
days are ineligible for STOP. Rather, they are assigned to the segregated unit
at the maximum security prison that houses death row. This policy undermines
the mission of the South Carolina Department of Corrections which is to
“provide rehabilitation and self-improvement opportunities for prisoners.”
[148]
Depriving prisoners of opportunities to become productive citizens is costly
and unwise as well as unjust. Lifting these barriers would bring short and long
term benefits to the individuals, their families, and the community.

Conclusion

In Alabama, South Carolina and, until recently, Mississippi,
prisoners with HIV forfeit numerous fundamental rights: to informed consent, to
confidentiality, and to non-discrimination, while at the same time they are
subject to an atmosphere of prejudice, stigma, and hostility from both staff
and other prisoners. Taken together, these conditions constitute cruel, inhuman
and degrading treatment in violation of international law.

After reviewing the findings of this report, Mississippi has
agreed to end its long-standing policy of segregation, thus increasing the
isolation of Alabama and South Carolina in this regard. Now, only in these two states
do prison officials continue to systematically isolate, marginalize and exclude
this population without medical justification. These policies reflect outdated
approaches to HIV that no longer have any basis in science or modern
correctional health. Segregation is also bad public policy, as keeping people
in prison longer simply because they have HIV is not only unfair, but more
expensive. Failing to prepare prisoners for transition to the community
increases their chances of returning to prison, at great cost to individuals,
families, and communities.

Prison systems throughout the US and around the world are
providing medical care for HIV and preventing its transmission while respecting
human rights. Alabama and South Carolina can, and should, end their own
isolation by reforming these policies without delay.

Acknowledgements

This report was researched by Megan McLemore, researcher
with the Health and Human Rights Division, Margaret Winter and Jackie Walker of
the ACLU National Prison Project, and the ACLU affiliates of Mississippi and
Alabama. The report was written by Megan McLemore, with valuable contributions
from Roona Ray, M.P.H., consultant to the Health and Human Rights Division.

The report was reviewed at Human Rights Watch by Joseph
Amon, Director of the Health and Human Rights Program, Rebecca Schleifer,
Director of Advocacy for the Health and Human Rights Program, David Fathi,
Director of the US Program, Aisling Reidy, Senior Legal Advisor, and Iain
Levine, Program Director. Production assistance was provided by Mignon Lamia,
Associate to the Health and Human Rights Division, Grace Choi, and Fitzroy
Hepkins.

At the ACLU, the report was reviewed by Margaret Winter and
Jackie Walker.

Human Rights Watch and the ACLU National Prison Project
gratefully acknowledge the assistance of Olivia Turner, Executive Director of
the ACLU of Alabama, Allison Neal, Staff Attorney at the ACLU of Alabama,
Victoria Middleton, Executive Director of the ACLU of South Carolina, Susan
Dunn, Staff Attorney at the ACLU of South Carolina, and Sarah Young, Kristy
Bennett and Nikita Thomas of the ACLU of Mississippi. We would like to further
thank the Director and staff of Palmetto AIDS Life Support Services in
Columbia, South Carolina and Low Country AIDS Services in Charleston, South
Carolina for their assistance and logistical support. Josiah Rich, M.D.,
Professor of Medicine and Community Health at Brown University and Director of
the HIV/AIDS Clinic for the Rhode Island Department of Corrections, provided
valuable consultation.

Most of all, we thank the current and former prisoners who
were courageous enough to share their experiences for this report.

[1]The
prevalence of HIV/AIDS in US federal and state prisons in 2007 was 1.7% versus
0.44% in the general adult population. US Bureau of Justice Statistics
“HIV in prisons, 2007-08”December 2009; Centers for Disease Control
and Prevention,“HIV Prevalence Estimates--United States, 2006.” Morbidity
and Mortality Weekly Report (MMWR) 57 (39) October 3, 2008 ,1073-1076;
Spaulding, A. et al., “HIV/AIDS Among Inmates of and Releasees from U.S.
Correctional Facilities 2006:Declining Share of Epidemic but Persistent Public
Health Opportunity” (2009) PLoS 4 (11): e7558.

[3]National
data for co-infection are limited, but localized studies consistently reveal
high rates of co-infection in both prisons and jails. In a recent investigation
of Chicago and San Francisco jails, 50% of prisoners with HIV had HBV infection
and 38% had HCV infection. K.A. Hennesse et al, “Prevalence of Infection
with Hepatitis B and C Viruses and Co-infection with HIV in Three Jails: A Case
for Viral Hepatitis Prevention in Jails in the United States.” Journal of Urban Health, 86:1, 2009, pp. 93 -105. In New York, a 2005 study showed that 40% of
prisoners testing positive for HIV were co-infected with Hepatitis C. Wang, et
al., “HIV Prevalence Trends by HIV Testing History, Injection Drug Use
and Sexual Risk Behaviors among Inmates Entering New York State Correctional
Facilities from 1988 to 2005,” 2008 (abstract presented at the 15th
Conference on Retroviruses and Opportunistic Infections.)

[5]
Centers for Disease Control and Prevention, “HIV and AIDS in the United
States: A Picture of Today’s Epidemic,” http://www.cdc.gov/hiv/topics/surveillance/united_states.htm
(accessed 28 September 2009). Centers for Disease Control and Prevention,
“Surveillance for Acute Viral Hepatitis, United States, 2007,”
Surveillance Summaries, MMWR, May 22, 2009. Vol. 58 / No. SS-3.

[8]Centers
for Disease Control and Prevention, “HIV Transmission Among Male Inmates
in a State Prison System --- Georgia, 1992—2005,” MMWR,vol. 55, no.
MM15, April 21, 2006, p. 421; K Jafa, et al. “HIV Transmission in a State
Prison System 1988–2005”, PLoS ONE 4(5): (2009)
e5416,doi10.1371/journal.pone.0005416. For a review of HBV, HCV and HIV
transmission studies for both US and international prisons, see R. Jurgens,
“HIV/AIDS and HCV in Prisons: A Select Annotated Bibliography,” International
Journal of Prisoner Health, vol. 2(2), June 2006. For a review of US
literature on transmission in prison see T. Hammett, “HIV/AIDS and other
infectious diseases among correctional inmates: transmission, burden and an
appropriate response,” American Journal of Public Health, vol. 96
(6), June 2006, p. 974.

[9]See,
e.g., C.P. Krebs et al, “Intraprison transmission: an assessment of
whether it occurs, how it occurs, and who Is at risk,” AIDS Education
and Prevention 14(Supp. B) (2002): 53; A. Spaulding et al, “Can
unsafe sex behind bars be barred?” American Journal of Public Health
91(8) (2001): 1176; N. Mahon, “New York inmates’ HIV risk
behaviors: the implications for prevention policy and programs,” American
Journal of Public Health 86 (1996):1211; and Human Rights Watch, No
Escape: Male Rape in US Prisons, 2001. For a global review of studies
examining sexual activity in prisons, see WHO, Evidence for Action Technical
Papers: Interventions to Address HIV in Prison, Prevention of Sexual
Transmission, (Geneva 2007).

[15]
WHO/UNODC/UNAIDS, Interventions to Address HIV in Prisons: Needle and
Syringe Progammes and Decontamination Strategies, 2007, p. 19. For a recent
review of successful implementation of prison harm reduction programs in an
Eastern European country, see “Harm Reduction in Prison: the Moldova
Model,” Open Society Institute Public Health Program, July 2009.

[16]MAT
has been adopted in prisons in Spain, Brazil, Canada, New Zealand, the Czech Republic, Albania, and the United States (Puerto Rico), and large urban jails
in the United States, including in Albuquerque, New Mexico; Orange County, Florida; Rikers Island Jail in New York City; and jails in three counties in Pennsylvania. R. Jurgens, et.al “Interventions to reduce HIV transmission related to
injecting drug use in prison” Lancet Infectious Diseases, 9:
(2009) 57-66.

[22]
Leatherwood v. Campbell, CV-02-BE-2812-W, U.S. District Court, Northern
District of Alabama (2004) . For a comprehensive account of efforts to obtain
adequate medical care in the HIV unit at Limestone, see B. Fleury-Steiner and
C. Crowder, Dying Inside: the HIV/AIDS Ward at Limestone Prison, (University of
Michigan Press: Ann Arbor, 2008).

[23]
Gates v. Collier, 4:71cv6, consolidated withMoore v.
Fordice, 4:90cv-125. Prospective relief in Moore was terminated in
2005 pursuant to the Prison Litigation Reform Act (PLRA), based on the district
court’s finding that constitutional violations within the purview of the
case had been remedied. Portions of Gates, relating to conditions at
Mississippi State Penitentiary, Unit 32 (Mississippi’s death row and
super-maximum security facility) are ongoing; on November 18, 2009, the State
moved to terminate under the PLRA.

[27]
Human Rights Watch/ACLU-NPP teleconference with Mississippi Commissioner of
Corrections Christopher Epps and General Counsel Leonard Vincent, March 11,
2010. The decision to integrate HIV-positive prisoners was later confirmed in
email communications to Human Rights Watch/ACLU-NPP dated March 16, 2010.

[28]
In an interview with the Jackson, MS Clarion ledger dated March 18, 2010,
Commissioner Epps stated that he would have ended the segregation policy
previously but the “ACLU asked that they remain segregated” when
the Moore litigation was terminated in 2005. This distorts the ACLLU’s
longstanding opposition to segregation of HIV-positive prisoners. Rather, the
ACLU expressed concern at the time for the safety of prisoners in the
segregation unit should they be summarily released into the general population
after having been compelled to involuntarily disclose their HIV status. The
decision by the Mississippi Department of Correction to evaluate each currently
segregated prisoner on a case by case basis strikes an acceptable balance
between these concerns.

[31]
M. Nowak and E. McArthur, The United Nations Convention Against Torture: A
Commentary (Oxford University Press, 2008), p. 8 (hereinafter Commentary..
A peremptory norm is one which is
"accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
character." Vienna Convention on the Law of Treaties (1969), art. 53.

[37]United Nations Standard Minimum Rules for the Treatment of Prisoners,
May 13, 1977, Economic and Social Council Res., 2076 (LXII); Basic Principles
for the Treatment of Prisoners, UN General Assembly Resolution 45/111 (1990);
Body of Principles for the Protection of All Persons Under any form of
Detention or Imprisonment, UN General Assembly Resolution 43/173/(1988).

[42]WHO, Guidelines on HIV Infection and AIDS in Prisons
(1999), para.10; UNAIDS, International Guidelines on HIV/AIDS and Human
Rights (2006),para.21(e); UNODC,HIV/AIDS Prevention, Care, Treatment and
Support in Prison Settings: A Framework for Effective National Response
(2006),p.18.

[43]
Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, “Promotion and Protection of all
Human Rights, Civil, political, Economic, Social and Cultural Rights, including
the Right to Development”, A/HRC/10/44, January 14, 2009.

[50]
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment (CPT) “The CPT Standards” 2006, para. 56, interpreting
the European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, (ECPT), signed November 26, 1987, E.T.S. 126, entered
into force February 1, 1989.

[51]Convention
on the Rights of Persons with Disabilities, adopted December 13, 2006, UN DOC
A/61/611, entered into force May 3, 2008, signed by the United States on July 30, 2009, Article 2.

[52]
For a report from an international policy dialogue on the applicability of the
Convention to people living with HIV/AIDS, see Dutch Coalition on Disability
and Development, “Intersectionality HIV and Disability: New Questions
Raised,”October 12, 2009.

[53]Basic Principles for the Treatment of Prisoners,
UN General Assembly Resolution 45/111 (1990), principles 5 and 9;United Nations Standard Minimum Rules for
the Treatment of Prisoners, May 13, 1977, Economic and Social Council Res.,
2076,article 22; UNODC, “HIV Prevention, Care, Treatment
and Support in a Prison Setting,” p. ix; Dublin
Declaration on HIV/AIDS in Prisons in Europe and Central Asia (2004), principle
2.

[84]
See, e.g. Alabama Department of Corrections Monthly Reports, 2008-2009 showing
221 assaults in maximum and medium security prisons during the period August
2008-August 2009, with one assault in a minimum security facility during the
same period.

[85]“s
on Lockdown at Broad River Prison,” The State, May 5, 2009;
“Broad River on Lockdown After Fatal Stabbing,” The State,
August 31, 2009.

[87]
Letter to Human Rights Watch/ACLU-NPP and the ACLU of Alabama from Commissioner
of Corrections Richard Allen dated March 12, 2010.

[88]Letter
dated August 12,2009 from Olivia Turner, Executive Director of the ACLU of
Alabama to Richard F. Allen, Commissioner of the Alabama Department of
Corrections; reply dated September 8, 2009 from Kim Thomas, General Counsel, Alabama Department of Corrections.

[91]
ACLU of Mississippi interviews with Larry P., Michael G. and Ted E.,
Mississippi State Penitentiary, Parchman, Mississippi, September 10, 2009, as
well as correspondence from Mississippi prisoners to ACLU-NPP and Human Rights
Watch.

[94]CDC
HIV/AIDS Factsheet, online at
http://www.cdc.gov/hiv/resources/factsheets/transmission.htm. In addition, the
WHO Guidelines on HIV Infection and AIDS in Prison states, “HIV infected
prisoners shall have equal access to workshops and to work in kitchens, farms
and other work areas, and to all programmes available to the general prison
population.” WHO Guidelines, para.27.

[95]
Letter to Human Rights Watch/ACLU-NPP and the ACLU of Alabama from Commissioner
of Corrections Richard Allen dated March 12, 2010.

[101]US
Department of Justice, “Questions and Answers: Americans With
Disabilities Act and the Rights of Persons with HIV/AIDS to Occupational
Licensing and Training, July 2009, http://www.ada.gov/qahivaids_license.htm
(accessed November 24, 2009).

[110]
“Policies of Federal and State Prison Programs Regarding Access to Work
Release and Food Service Jobs” April 17, 2008, on file with the ACLU-NPP.
40 states and the Bureau of Prisons responded to the survey. 27 states had work
release programs similar to that in Alabama, in which prisoners wear civilian
clothes and are supervised by civilian employers. Of these, 25 states have no
restrictions for participation of HIV-positive prisoners. Only Nevada and South Carolina reported ineligibility of HIV-positive prisoners for work
release.

[127]Memorandum
from Jackie Walker of the ACLU-NPP, “Communications with state prison
officials re: HIV care” September 25, 2009, on file with Human Rights Watch
and ACLU-NPP.

[128]
Human Rights Watch telephone interview with David Tatarksy, General Counsel for
the South Carolina Department of Corrections, September 21, 2009.

[129]
Letter from Commissioner Richard Allen to Human Rights Watch/ACLU-NPP/ACLU of
Alabama dated March 12, 2010; Alabama Department of Corrections press release,
“ADOC Announces Policy Changes for HIV Positive Prisoners” October
31, 2007. During the trial of Onishea v Hopper, 171 F.3d 1289 (1999),
Alabama corrections officials offered evidence of a .00067 percent
seroconversion rate (prisoners who became HIV-positive while in prison during
an 8- year period.) Onishea, p. 1264. Human Rights Watch and the
ACLU-NPP have requested recent data, analysis or studies that might document
transmission rates, reduced transmission or the impact of segregated housing on
transmission but to date, Alabama has provided no documentation as of the date
of this report.

[130]South
Carolina points to a lower number of HIV-positive prisoners since instituting
the segregation policy, but this claim confuses the issue of transmission with
the number of prisoners entering the system already infected with HIV. Email
communication dated September 28, 2009 from David Tatarsky, General Counsel to
the South Carolina Department of Corrections, to Human Rights Watch.

[133]
Centers for Disease Control and Prevention, “HIV Transmission Among Male
Inmates in a State Prison System --- Georgia, 1992—2005,” MMWR,vol.
55, no. MM15, April 21, 2006, p. 421. This study estimates that the 88
prisoners seroconverting in prison represented 9 percent of all HIV-positive
prisoners in the Georgia State prisons, though the actual percentage may be
higher or lower due to variables not in the scope of the investigation.See,
Jafa,K. et al. “HIV Transmission in a State Prison System
1988–2005”, PLoS ONE 4(5): (2009)
e5416,doi10.1371/journal.pone.0005416.